Citation Nr: 0213659
Decision Date: 10/04/02 Archive Date: 10/10/02
DOCKET NO. 01-04 014 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
right knee disorder.
2. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
left knee disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. A. Speck, Associate Counsel
INTRODUCTION
The veteran had active service from May 1954 to June 1963.
His claims comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2000 rating decision of
the Department of Veteran's Affairs (VA) Regional Office (RO)
in Indianapolis, Indiana.
In March 2001, the veteran requested personal hearings at the
RO and before a Member of the Board. He was provided with a
hearing at the RO in August 2001. In May 2002, the veteran
withdrew his request for a hearing before a Member of the
Board. There are no other outstanding hearing requests of
record.
FINDINGS OF FACT
1. A February 1998 rating decision denied service connection
for a right knee disorder, and an October 1998 Board decision
denied service connection for a left knee disorder.
2. The evidence associated with the claims file subsequent to
the February 1998 rating decision and the October 1998 Board
decision is not so significant that it must be considered in
order to fairly decide the merits of the veteran's claims.
CONCLUSIONS OF LAW
1. The February 1998 rating decision denying service
connection for a right knee disorder is final. 38 U.S.C.A. §
7105(a)(c) (West 1991); 38 C.F.R. §§ 20.200, 20.1103 (2001).
2. New and material evidence has not been presented to reopen
a claim of entitlement to service connection for a right knee
disorder, and therefore requirements to reopen the claim have
not been met. 38 U.S.C.A. § 5103, 5103A, 5108, 7105 (West
Supp. 2002); 38 C.F.R. § 3.156 (2001); 66 Fed. Reg. 45,620,
45,630-32 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. §§ 3.102 and 3.159).
3. The Board's October 1998 decision denying service
connection for a left knee disorder is final. 38 U.S.C.A. §
7104 (West Supp. 2002); 38 C.F.R. § 20.1100 (2001).
4. New and material evidence has not been presented to reopen
a claim of entitlement to service connection for a left knee
disorder, and therefore requirements to reopen the claim have
not been met. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7104 (West
Supp. 2002); 38 C.F.R. §§ 3.156, 3.307, 3.309 (2001); 66 Fed.
Reg. 45,620, 45,630-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102 and 3.159).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that in November 2000 the Veterans Claims
Assistance Act of 2000 (VCAA) became law, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, 5107). The VCAA applies to all pending
claims for VA benefits and provides, among other things, that
VA shall make reasonable efforts to notify a claimant of
relevant evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by VA. The VCAA
also requires VA to assist a claimant in obtaining such
evidence. See 38 U.S.C.A. §§ 5103, 5103A. Regulations
implementing the VCAA have been enacted. See 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. § 3.159). The veteran was notified of this
regulatory change in an April 2001 letter. As set forth
below, the RO's actions throughout the course of this appeal
satisfied the requirements under the VCAA.
First, VA has a duty under the VCAA to notify the veteran and
his representative of any information and evidence needed to
substantiate and complete a claim. The veteran was informed
in a September 2000 letter and rating decision of the
evidence needed to substantiate his claims, and he was
provided an opportunity to submit such evidence. Moreover,
in a December 2000 statement of the case and a supplemental
statement of the case issued in February 2002, the RO
notified the veteran of regulations pertinent to service
connection claims requiring new and material evidence, and
informed him why his claims had been denied. He was provided
additional opportunities to present evidence and argument in
support of his claims. In addition to notification given to
the veteran in the rating decision, statement of the case,
and supplemental statement of the case, the RO sent a letter
to the veteran in April 2001 detailing the responsibility of
VA to obtain service medical records, VA treatment records,
and records held by other Federal departments or agencies.
In addition, the RO specifically requested that the veteran
submit names, addresses, and approximate dates of treatment
for his bilateral knee disorders so that VA may assist in
obtaining those records. Finally, in a July 2000 letter, the
veteran was informed that the best type of evidence to
establish service connection for his bilateral knee disorders
would be in the form of statements from physicians that had
treated him during or shortly following service. The Board
finds that the foregoing information provided to the veteran
specifically satisfies the requirements of 38 C.F.R. § 5103
of the new statute in that the veteran was clearly notified
of the evidence necessary to substantiate his claims. Under
these circumstances, the Board finds that the notification
requirement of the VCAA has been satisfied.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claims. VA complied
with the VCAA's duty to assist by aiding the veteran in
obtaining outstanding medical evidence. The veteran's
service medical records have been received, as have VA
outpatient treatment reports. In addition, the veteran was
provided with VA examinations for joint disorders, most
recently in May 2000. Finally, in August 1999, the veteran
asserted that he had only received medical treatment at VA
medical facilities. In this regard, all known and available
service, private, and VA medical records have been obtained
and are associated with the veteran's claims file. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Essentially, the Board finds that VA has done everything
reasonably possible to assist the veteran and that no further
action is necessary to meet the requirements of the VCAA and
the applicable regulatory changes published to implement that
statute.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active military service. 38 U.S.C.A. § 1110 (West
Supp. 2002); 38 C.F.R. § 3.303 (2001). That an injury
occurred in service alone is not enough; there must be
chronic disability resulting from that injury. If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R. §
3.303(b) (2001). Certain chronic diseases, such as
arthritis, are presumed to have been incurred in service if
manifest to a compensable degree within one year of discharge
from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991 & Supp.
2002); 38 C.F.R. §§ 3.307, 3.309 (2001). Service connection
may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2001).
The veteran requests that the Board reopen and grant his
claims of entitlement to service connection for right and
left knee disorders on the basis that he has submitted new
and material evidence. The Board observes that the veteran's
claim for service connection for a right knee disorder was
addressed in a February 1998 rating decision. His service
connection claim for a left knee disorder was addressed in an
October 1998 Board decision. Service connection was denied
for both claims, and those decisions are final. See 38
U.S.C.A. §§ 7104, 7105 (West Supp. 2002); 38 C.F.R.
§§ 20.1100, 20.1103 (2001). In June 2000, the veteran
requested that his service connection claims be reopened. In
a September 2000 rating decision, the RO denied both claims.
The veteran disagreed with that decision and initiated a
timely appeal. As there are prior final decisions for these
claims, the February 1998 rating decision and the October
1998 Board decision, the Board is required to determine
whether new and material evidence has been presented before
reopening and adjudicating the service connection claims for
the disorders at issue on the merits. See Barnett v. Brown,
83 F.3d 1380, 1384 (Fed. Cir. 1980).
According to the law, if new and material evidence is
presented or secured with respect to a claim that has been
finally disallowed, the claim shall be reopened and reviewed.
See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2001).
When a veteran seeks to reopen a claim, the first inquiry is
whether the evidence presented or secured since the last
final disallowance is "new and material." Under the
version of 38 C.F.R. § 3.156(a) applicable to this case, new
and material evidence is defined as evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative or redundant, and which by itself or in connection
with the evidence previously assembled is so significant that
it must be considered in order to fairly decide the merits of
the claim. See 38 C.F.R. § 3.156(a), as in effect prior to
August 29, 2001; Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998). The Board notes that there has been a regulatory
change with respect to the definition of new and material
evidence, which applies prospectively to all claims filed on
or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630
(Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.156(a)). As
the veteran filed his claim prior to that date, the earlier
version of the law, as set forth above, remains applicable in
this case.
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed. See
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously disallowed
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. See Smith v. West, 12 Vet. App. 312, 314
(1999). If it is determined that new and material evidence
has been submitted, the claim must be reopened.
For the reasons discussed below, the Board finds that the
veteran has failed to produce new and material evidence
sufficient to reopen his claims of entitlement to service
connection for right and left knee disorders. See 38
U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a).
The necessary evidence that was absent from the record at the
time of the February 1998 rating decision was medical
evidence showing that the veteran's current right knee
disorder was incurred during service. There was also no
medical evidence that the veteran's osteoarthritis had its
onset within one year of separation from service. The Board
considered the veteran's in-service medical records showing
treatment for a contusion/hematoma of the right leg with
swelling of the knee; however, subsequent in-service
treatment reports revealed no abnormal findings. The Board
found that no medical evidence of a right knee disorder was
of record from separation until the early 1990s. In
addition, no physician had linked the veteran's current right
knee disorder to service.
The necessary evidence absent from the record at the time of
the October 1998 Board decision was medical evidence showing
that the veteran's current left knee disorder was incurred
during active service. In addition, there was no medical
evidence that the veteran's osteoarthritis occurred during
active service, or within one year thereafter. The Board had
considered service medical records showing that the veteran
was treated for an abrasion of the left knee in August 1960,
and an August 1961 record reflecting that the veteran was
seen on two occasions with complaints of left ankle and leg
pain following an automobile accident. However, no follow-up
treatment was noted, and at separation in June 1963, the
veteran's feet and lower extremities were clinically
evaluated as normal. The Board also contemplated the July
1993 VA examination where the veteran reported that he had
injured his left knee playing football in 1959. While he was
diagnosed with post-traumatic osteoarthritis of the left
knee, the examiner made no reference to active service. An
October 1994 VA examination reflected that the veteran
underwent a left knee total knee arthroscopy for degenerative
disease in June 1994, and at his March 1995 RO hearing, the
veteran testified that he had injured both his knees playing
football during service. He also reported that he had worn a
left leg brace for 6-7 days while on "temporary duty," and
maintained that after service he worked in carpentry until
1991, always feeling a slight pain in his left knee.
Finally, the Board considered the January 1998 VA examination
where the veteran complained of bilateral knee pain and
ambulated with a cane. None of the treating physicians
linked the veteran's left knee disorder to active service.
The evidence submitted by the veteran subsequent to the
February 1998 rating decision and the October 1998 Board
decision included VA outpatient treatment records, September
1998 to November 2001, and a VA hospitalization report,
February 1999 to March 1999. The veteran was also afforded a
VA examination in May 2000, and an August 2000 statement from
M.C.E. was submitted in support of the veteran's service
connection claim. Finally, the veteran was provided with a
personal hearing in August 2001.
VA outpatient treatment reports, September 1998 to November
2001, noted that the veteran was being followed by
orthopedics and physical therapy for post bilateral knee
replacements. Throughout his treatment, the veteran
complained of bilateral knee pain, and having to use a walker
to ambulate. While it was noted that he had osteoarthritis
in both knees, no statements were made regarding the etiology
of the veteran's osteoarthritis or right and left knee
disorders. No references were made to active service in the
veteran's VA outpatient treatment reports. The May 2000 VA
examination for joint disorders noted that the veteran had
bilateral knee replacements in 1994 and that he ambulated
with a walker. The examiner commented on the hyperextension
deformity with weight bearing secondary to his bilateral knee
replacements, but made no statement regarding the etiology of
the knee disorders. In his August 2000 statement, M.C.E.
asserted that he had served with the veteran during service
and recalled two occasions on which the veteran injured
himself and had to go to sick bay because of leg and knee
pain. He also recalled an incident where the veteran had one
of his legs in a cast and ambulated on crutches. At his
August 2001 personal hearing, the veteran stated that he
injured his right knee playing football during service in
1959, and that he was told he would have trouble with that
leg "later down the line." He also stated that he had an
abrasion on his left knee in August 1960, and injured his
left leg in a car accident in October 1961. The veteran
asserted that he did not mention his bilateral knee pain at
separation, and did not undergo any employment, life
insurance, or medical insurance examinations after discharge.
Instead, he stated that he first sought treatment for knee
pain in 1993, nearly 30 years after service. Finally, he
maintained that he had no other injuries to his knees, except
those occurring during active service.
While these additional documents have been associated with
the file subsequent to the February 1998 rating decision and
the October 1998 Board decision, the record still does not
contain evidence showing that the veteran's right and left
knee disorders were incurred in or aggravated by active
service. Therefore, the evidence presented by the veteran is
not so significant that it must be considered in order to
fairly decide the merits of the appeal.
With respect to the contentions made by the veteran at his
personal hearing, and those made by M.C.E. in August 2000,
the Board does not doubt the veteran's sincere belief in his
service connection claims, but the record does not
demonstrate that the either the veteran or M.E.C. is a
medical professional competent to render an opinion on
matters of medical etiology. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992).
Overall, while the evidence submitted subsequent to the
February 1998 rating decision and the October 1998 Board
decision may be "new," in that it was not of record at the
time of the prior decisions, it does not bear substantially
upon the specific matter under consideration; namely, whether
the veteran's right and left knee disorders have any relation
to active service. Thus, the newly submitted evidence is not
"material," (i.e., it is not so significant that it must be
considered in order to fairly decide the merits of the claim)
and as such the criteria set forth in 38 C.F.R. § 3.156(a)
for reopening a claim of service connection have not been
met. Accordingly, the Board finds that new and material
evidence sufficient to reopen the veteran's service
connection claims has not been presented.
ORDER
New and material evidence having not been submitted to reopen
a claim for entitlement to service connection for a right
knee disorder, the appeal is denied.
New and material evidence having not been submitted to reopen
a claim for entitlement to service connection for a left knee
disorder, the appeal is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.